EXHIBIT 4.2
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS, AND MAY BE OFFERED AND SOLD ONLY IF SO
REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
STOCK PURCHASE WARRANT
Date of Issuance: May 20, 2002 Certificate No. __1__
For value received, FRANK'S NURSERY & CRAFTS, INC., a Delaware
corporation (the "Company"), hereby grants to KIMCO REALTY SERVICES, INC., a
Delaware corporation, or its permitted transferees and assigns, the right to
purchase from the Company (a) a total of 3,750,001 Warrant Shares (as defined
herein) and (b) an additional 652,173 Warrant Shares (the "Additional Shares")
upon the making of a Revolving Credit Loan (as defined under the Credit
Agreement) to the Company under a certain Credit Agreement, dated as of the date
hereof (the "Credit Agreement"), between the Company and Kimco Capital Corp., in
each case of clauses (a) and (b), at a price per share of $1.15 (the "Initial
Exercise Price"). The Additional Shares shall remain exercisable notwithstanding
any repayment of any Revolving Credit Loan. The exercise price and number of
Warrant Shares (and the amount and kind of other securities) for which this
Warrant is exercisable shall be subject to adjustment as provided herein.
Certain capitalized terms used herein are defined in Section 4 hereof.
This Warrant is subject to the following provisions:
SECTION 1. Exercise of Warrant.
1A. Exercise Period. The purchase rights represented by this Warrant
may be exercised, in whole or in part, at any time and from time to time after
the date hereof to and including 5:00 p.m., New York City time, on the later of
(a) May 20, 2005, (b) the date that the Obligations (as defined under the Credit
Agreement) are irrevocably and indefeasibly paid in full and (c) the Facility
Termination Date (as defined under the Credit Agreement), in the case of any of
clauses (a), (b) or (c), if such day is not a business day, on the next
preceding business day (the "Exercise Period").
1B. Exercise Procedure.
(i) This Warrant shall be deemed to have been exercised when
all of the following items have been delivered to the Company (the "Exercise
Time"):
(a) a completed Exercise Agreement, as described in
Section IC below, executed by the Person exercising all or part of the
purchase rights represented by this Warrant (the "Purchaser");
(b) this Warrant;
(c) if the Purchaser is not the Registered Holder, an
Assignment or Assignments in the form set forth in Exhibit II hereto
evidencing the assignment of this Warrant to the Purchaser; and
(d) any (including any combination) of the following:
(x) a check payable to the Company in an amount equal to the product of
the Exercise Price (as such term is defined in Section 2) multiplied by
the number of Warrant Shares being purchased upon such exercise (the
"Aggregate Exercise Price") or (y) in the event the Purchaser is the
Lender (as defined under the Credit Agreement), an Affiliate of the Lender
(as defined in the Credit Agreement), the Participant (as defined under
the Loan Participation Agreement) or an Affiliate of the Participant (as
defined under the Loan Participation Agreement), in each case, by the
application of unpaid principal amount of the Loans (as defined in the
Credit Agreement) in the following order of priorities: (A) first, the
Term Loan (as defined in the Credit Agreement) of the Company and (B)
second, any Revolving Credit Loan (as defined in the Credit Agreement), in
the case of either (A) or (B), having a value equal to the Aggregate
Exercise Price of the Warrant Shares being purchased upon such exercise.
(ii) Upon the exercise of this Warrant pursuant to Section
1B(i)(d)(x), the Purchaser may require the Company to use all or a portion of
the cash proceeds received upon such exercise to repay in the following order of
priority: first, any and all amounts due under any Term Loan and, second, any
and all amounts due under any Revolving Credit Loan. Such repayment shall be in
accordance with the written instructions of the Purchaser and shall be made
within two business days of receipt by the Company of such instructions.
(iii) Certificates for Warrant Shares purchased upon exercise
of this Warrant shall be delivered by the Company to the Purchaser within five
(5) days after the date of the Exercise Time together with any cash payable in
lieu of a fraction of a share pursuant to Section 13 hereof. Unless this Warrant
has expired or all of the purchase rights represented hereby have been
exercised, the Company shall prepare a new Warrant, substantially identical
hereto, representing the rights formerly represented by this Warrant which have
not expired or been exercised and shall, within such five-day period, deliver
such new Warrant to the Person designated for delivery in the Exercise Agreement
(as defined in Section 1C below).
(iv) Upon any exercise of this Warrant pursuant to Section
1B(i)(d)(y) and the instructions set forth in the Exercise Agreement, the
Company will accept the principal amount of indebtedness specified in such
Exercise Agreement in satisfaction of a like amount of such payment. Nothing in
this section shall affect the rights of the Lender (as defined in the Credit
Agreement) to receive interest payable on any Loan (as defined in the Credit
Agreement) on the related interest payment date in accordance with the terms of
the Credit Agreement, including interest accrued but unpaid on the principal
amount of the Term Loan (as defined under the Credit Agreement) and any
Revolving Credit Loan (as defined under the Credit Agreement) applied to the
Aggregate Exercise Price pursuant to Section 1B(i)(d) for the period prior to
such application.
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(v) The Warrant Shares issuable upon the exercise of this
Warrant shall be deemed to have been issued to the Purchaser at the Exercise
Time, the Purchaser shall be deemed for all purposes to have become the
Registered Holder of such Warrant Shares at the Exercise Time and the prepayment
of the portion of the Loan (as defined under the Credit Agreement) being prepaid
as a result of such exercise shall be deemed for all purposes to have occurred
at the Exercise Time.
(vi) The issuance of certificates for Warrant Shares upon
exercise of this Warrant shall be made without charge to the Registered Holder
or the Purchaser for any issuance tax in respect thereof or other cost incurred
by the Company in connection with such exercise and the related issuance of
Warrant Shares.
(vii) The Company shall not close its books against the
transfer of this Warrant or of any Warrant Shares issued or issuable upon the
exercise of this Warrant in any manner which interferes with the timely exercise
of this Warrant. The Company shall from time to time take all such action as may
be necessary to assure that the par value per share of the unissued Warrant
Shares acquirable upon exercise of this Warrant is at all times equal to or less
than the Exercise Price then in effect.
(viii) The Company shall assist and cooperate with any
reasonable request by the Registered Holder or any Purchaser which is required
to make any governmental filings or obtain any governmental approvals prior to
or in connection with any exercise of this Warrant.
(ix) Notwithstanding any other provision hereof, if an
exercise of any portion of this Warrant is to be made in connection with a
public offering or a sale of the Company (pursuant to a merger, sale of stock or
otherwise), such exercise may at the election of the Registered Holder be
conditioned upon the consummation of such transaction, in which case such
exercise shall not be deemed to be effective until immediately prior to
consummation of such transaction.
(x) The Company shall at all times reserve and keep available
out of its authorized but unissued Common Stock (or out of shares of Common
Stock held in its treasury) solely for the purpose of issuance upon the exercise
of this Warrant, the maximum number of Warrant Shares issuable upon the exercise
of this Warrant. All Warrant Shares which are so issuable shall, when issued and
upon the payment of the applicable Exercise Price, be duly and validly issued,
fully paid and nonassessable and free from all taxes, liens, charges and
preemptive rights. The Company shall take all such actions as may be necessary
to ensure that all such Warrant Shares may be so issued without violation by the
Company of any applicable law or governmental regulation or any requirements of
any domestic securities exchange or quotation system upon which shares of Common
Stock or other securities constituting Warrant Shares may be listed or quoted
(except for official notice of issuance which shall be immediately delivered by
the Company upon each such issuance). The Company will use its best efforts to
cause the Warrant Shares, immediately upon such exercise, to be listed on any
domestic national securities exchange or quotation system upon which shares of
Common Stock or other securities constituting Warrant Shares are listed or
quoted at the time of such exercise.
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(xi) If the Warrant Shares issuable by reason of exercise of
this Warrant are convertible into or exchangeable for any other stock or
securities of the Company, the Company shall, at the Purchaser's option and upon
surrender of this Warrant by such Purchaser as provided above together with any
notice, statement or payment required to effect such conversion or exchange of
Warrant Shares, deliver to such Purchaser (or as otherwise specified by such
Purchaser) a certificate or certificates representing the stock or securities
into which the Warrant Shares issuable by reason of such conversion are
convertible or exchangeable, registered in such name or names and in such
denomination or denominations as such Purchaser has specified.
(xii) The Company shall not, and shall not permit its
subsidiaries to, directly or indirectly, by any action (including, without
limitation, reincorporation in a jurisdiction other than Delaware, amending its
Certificate of Incorporation or through any Organic Change, issuance or sale of
securities or any other voluntary action) avoid or seek to avoid the observance
or performance of any terms of this Warrant or impair or diminish its value, but
shall at all times in good faith assist in the carrying out of all such terms of
Warrant. Without limiting the generality of the foregoing, the Company shall (a)
obtain all such authorizations, exemptions or consents from any public
regulatory body having jurisdiction thereof as may be necessary to enable the
Company to perform its obligations under this Warrant and (b) not undertake any
reverse stock split, combination, reorganization or other reclassification of
its capital stock which would have the effect of making the Warrant exercisable
for less than one share of Common Stock.
(xiii) The Company has all requisite corporate power and
authority to enter into and perform its obligations under this Warrant and to
issue and deliver the Warrant to the Purchaser. The execution, delivery, and
performance by the Company of its obligations under this Warrant, including the
issuance and delivery of the Warrant to the Purchaser, have been duly authorized
by all necessary corporate action on the part of the Company. This Warrant has
been duly executed and delivered by the Company and is a legal, valid, and
binding obligation of the Company and is enforceable against the Company in
accordance with its terms.
1C. Exercise Agreement. Upon any exercise of this Warrant, the
Purchaser shall deliver to the Company an Exercise Agreement in substantially
the form set forth in Exhibit I hereto (the "Exercise Agreement"), except that
if the Warrant Shares are not to be issued in the name of the Registered Holder,
the Exercise Agreement shall also state the name of the Person to whom the
certificates for the Warrant Shares are to be issued, and if the number of
Warrant Shares to be issued does not include all of the Warrant Shares
purchasable hereunder, it shall also state the name of the Person to whom a new
Warrant for the unexercised portion of the rights hereunder is to be issued.
SECTION 2. Adjustment of Exercise Price and Number of Shares. In
order to prevent dilution of the rights granted under this Warrant (including
with respect to the Additional Shares notwithstanding that no Revolving Credit
Loan (as defined in the Credit Agreement) has been made or requested pursuant to
the terms of the Credit Agreement), the Initial Exercise Price shall be subject
to adjustment from time to time as provided in this Section 2 (as so adjusted,
the
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"Exercise Price"), and the number of Warrant Shares obtainable upon exercise of
this Warrant shall be subject to adjustment from time to time, each as provided
in this Section 2.
2A. Adjustment of Exercise Price and Number of Shares upon Issuance
of Common Stock. If and whenever, on or after the date hereof, the Company
issues or sells, or in accordance with Section 2B is deemed to have issued or
sold, other than pursuant to a Permitted Issuance, as described in Section 2C or
pursuant to the Purchase Rights covered by Section 3, any shares of Common Stock
for a consideration per share less than the Fair Market Value per share of the
Common Stock determined as of the date of such issuance or sale, then
immediately upon such issuance or sale the Exercise Price shall be reduced to
equal the amount determined by multiplying the Exercise Price in effect
immediately prior to such issuance or sale by a fraction, the numerator of which
will be the sum of (1) the number of shares of Common Stock Deemed Outstanding
immediately prior to such issuance or sale multiplied by the Fair Market Value
per share of the Common Stock determined as of the date of such issuance or
sale, plus (2) the consideration, if any, received by the Company upon such
issuance or sale, and the denominator of which will be the product derived by
multiplying such Fair Market Value per share of the Common Stock by the number
of shares of Common Stock Deemed Outstanding immediately after such issuance or
sale. Upon each such adjustment of the Exercise Price hereunder, the number of
Warrant Shares acquirable upon exercise of this Warrant shall be adjusted to
equal the number of shares determined by multiplying the Exercise Price in
effect immediately prior to such adjustment by the number of Warrant Shares
acquirable upon exercise of this Warrant immediately prior to such adjustment
and dividing the product thereof by the Exercise Price resulting from such
adjustment. For the purposes of this Section 2, the calculation of the number of
shares of Common Stock Deemed Outstanding shall exclude the Warrant Shares.
2B. Effect on Exercise Price of Certain Events. For purposes of
determining the adjusted Exercise Price under Section 2A, the following shall be
applicable:
(i) Issuance of Rights or Options. If the Company in any
manner grants any rights or options (other than the Purchase Rights covered by
Section 3 hereof or a Permitted Issuance) to subscribe for or to purchase Common
Stock or any stock or other securities convertible into or exchangeable for
Common Stock (including, without limitation, convertible common stock) (such
rights or options being herein called "Options" and such convertible or
exchangeable stock or securities being herein called "Convertible Securities")
and the price per share for which Common Stock is issuable upon the exercise of
such Options or upon conversion or exchange of such Convertible Securities is
less than the Fair Market Value per share of the Common Stock then in effect,
then the total number of shares of Common Stock then issuable upon the exercise
of such Options or upon conversion or exchange of the total amount of such
Convertible Securities then issuable upon the exercise of such Options shall be
deemed to be outstanding and to have been issued and sold by the Company for
such price per share. For purposes of this paragraph, the "price per share for
which Common Stock is issuable upon exercise of such Options or upon conversion
or exchange of such Convertible Securities" is determined by dividing (A) the
total amount, if any, received or receivable by the Company as consideration for
the granting of such Options, plus the aggregate amount of additional
consideration then payable to the Company upon the exercise of all such Options,
plus in the case of such Options which relate to Convertible Securities, the
aggregate amount of additional
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consideration, if any, then payable to the Company upon the issuance or sale of
such Convertible Securities and the conversion or exchange thereof, by (B) the
total number of shares of Common Stock then issuable upon exercise of such
Options or upon the conversion or exchange of all such Convertible Securities
issuable upon the exercise of such Options. No further adjustment of the
Exercise Price shall be made upon the actual issuance of such Common Stock or of
such Convertible Securities upon the exercise of such Options or upon the actual
issuance of such Common Stock upon conversion or exchange of such Convertible
Securities.
(ii) Issuance of Convertible Securities. If the Company in any
manner issues or sells any Convertible Securities and the price per share for
which Common Stock is issuable upon such conversion or exchange is less than the
Fair Market Value per share of the Common Stock then in effect, then the number
of shares of Common Stock then issuable upon conversion or exchange of such
Convertible Securities shall be deemed to be outstanding and to have been issued
and sold by the Company for such price per share. For the purposes of this
paragraph, the "price per share for which Common Stock is issuable upon such
conversion or exchange" is determined by dividing (A) the total amount received
or receivable by the Company as consideration for the issue or sale of such
Convertible Securities, plus the aggregate amount of additional consideration,
if any, then payable to the Company upon the conversion or exchange thereof, by
(B) the total number of shares of Common Stock then issuable upon the conversion
or exchange of all such Convertible Securities. No further adjustment of the
Exercise Price shall be made upon the actual issue of such Common Stock upon
conversion or exchange of such Convertible Securities, and if any such issue or
sale of such Convertible Securities is made upon exercise of any Options for
which adjustments of the Exercise Price have been or are to be made pursuant to
other provisions of this Section 2B, no further adjustment of the Exercise Price
shall be made by reason of such issue or sale.
(iii) Change in Option Price or Conversion Rate. If either the
purchase price provided for in any Options, the additional consideration, if
any, payable upon the issue, conversion or exchange of any Convertible
Securities, or the rate at which any Convertible Securities are convertible into
or exchangeable for Common Stock shall change at any time, the Exercise Price in
effect at the time of such change shall be adjusted to the Exercise Price which
would have been in effect at such time had such Options or Convertible
Securities still outstanding provided for such changed purchase price,
additional consideration or changed conversion rate, as the case may be, at the
time initially granted, issued or sold and the number Warrant Shares shall be
correspondingly readjusted.
(iv) Treatment of Expired Options and Unexercised Convertible
Securities. Upon the expiration of any Option or the termination of any right to
convert or exchange any Convertible Securities, in either case without the
exercise of such Option or right, the Exercise Price then in effect and the
number of Warrant Shares acquirable hereunder shall be adjusted to the Exercise
Price and the number of shares which would have been in effect at the time of
such expiration or termination had such Option or Convertible Securities, to the
extent outstanding immediately prior to such expiration or termination, never
been issued.
(v) Calculation of Consideration Received. If any Common
Stock, Options or Convertible Securities are issued or sold or deemed to have
been issued or sold for
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cash, the consideration received therefor shall be deemed to be the net amount
received by the Company therefor. In case any Common Stock, Options or
Convertible Securities are issued or sold for a consideration other than cash,
the amount of the consideration other than cash received by the Company shall be
the fair value of such consideration, except where such consideration consists
of marketable securities, in which case the amount of consideration received by
the Company shall be the market price thereof as of the date of receipt. In case
any Common Stock, Options or Convertible Securities are issued to the owners of
the non-surviving entity in connection with any merger or other business
combination in which the Company is the surviving entity, the amount of
consideration therefor shall be deemed to be the fair value of such portion of
the net assets and business of the non-surviving entity as is attributable to
such Common Stock, Options or Convertible Securities, as the case may be. The
fair value of any consideration other than cash or marketable securities shall
be determined jointly by the Company and the Required Holders. If such parties
are unable to reach agreement within a reasonable period of time, such fair
value shall be determined by an appraiser jointly selected by the Company and
the Required Holders, whose determination shall be final and binding on the
Company and all Registered Holders of Warrants (as defined in Section 4 below).
The fees and expenses of such appraiser shall be paid by the Company.
(vi) Integrated Transactions. In case any Option or
Convertible Security is issued in connection with the issue or sale of other
securities of the Company, together comprising one integrated transaction in
which no specific consideration is allocated to such Options or Convertible
Securities by the parties thereto, the Option or Convertible Security shall be
deemed to have been issued for no consideration; provided, if such other
securities are debt securities (such debt securities so issued are herein
referred to as the "Debt") of the Company or any of its subsidiaries, the Option
or Convertible Security shall be deemed to have been issued for consideration
equal to the excess, if any, of (a) the aggregate face amount (the "Estimated
Face Amount") of debt securities with terms identical to the terms of the Debt
(other than the increase to face value described in this proviso) which the
Company or such subsidiary would have had to issue had no Option or Convertible
Security been issued in connection therewith, given the prevailing market
conditions at the time of the issuance of the Debt, in order to receive the same
aggregate net proceeds as is actually received from the issuance of the Debt,
over (b) the aggregate face amount of the Debt. The Estimated Face Amount shall
be as mutually agreed between the Company and the Registered Holder or, if no
such mutual agreement is reached, as set forth in the written opinion, addressed
to the Registered Holder, of an investment bank of national recognition,
retained by the Company and reasonably acceptable to the Registered Holder;
provided, that if no such mutual agreement is reached or written opinion is
received, the Estimated Face Amount shall be deemed to be zero (0); and
provided, further, that the fees and expenses of such investment bank shall be
borne by the Company.
Example: If the Company issues $20 million aggregate principal
amount of 10% subordinated debentures with a 10-year
maturity (and receives aggregate net proceeds of $20
million), and in connection therewith issues warrants,
and in accordance with the provisions of Section 2B(vi),
the Company and the Registered Holder mutually agree or
an investment bank determines that the Estimated Face
Amount of the subordinated debentures (with terms
otherwise identical
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to the securities issued) would have been $21 million
(i.e., to yield aggregate net proceeds of $20 million to
the Company), had the warrants not been issued, then the
warrants would be deemed to have been issued for $1
million.
(vii) Treasury Shares. The number of shares of Common Stock
outstanding at any given time does not include shares owned or held by or for
the account of the Company or any subsidiary of the Company and the disposition
of any shares so owned or held shall be considered an issue or sale of Common
Stock.
(viii) Record Date. If the Company takes a record of the
holders of Common Stock for the purpose of entitling them (A) to receive a
dividend or other distribution payable in Common Stock, Options or Convertible
Securities or (B) to subscribe for or purchase Common Stock, Options or
Convertible Securities, then such record date shall be deemed to be the date of
the issue or sale of the shares of Common Stock deemed to have been issued or
sold upon the declaration of such dividend or the making of such other
distribution or the date of the granting of such right of subscription or
purchase, as the case may be.
2C. Subdivision or Combination of Common Stock. If the Company at
any time subdivides (by any stock split, stock dividend, recapitalization or
otherwise) the Common Stock into a greater number of shares or pays a dividend
or makes a distribution to holders of the Common Stock in the form of shares of
Common Stock, the Exercise Price in effect immediately prior to such subdivision
shall be proportionately reduced and the number of Warrant Shares obtainable
upon exercise of this Warrant shall be proportionately increased. If the Company
at any time combines (by reverse stock split or otherwise) the Common Stock into
a smaller number of shares, the Exercise Price in effect immediately prior to
such combination shall be proportionately increased and the number of Warrant
Shares obtainable upon exercise of this Warrant shall be proportionately
decreased.
2D. Organic Change. Any recapitalization, reorganization,
reclassification, consolidation, merger, sale of all or substantially all of the
Company's assets or other transaction which is effected in such a way that
holders of Common Stock are entitled to receive (either directly or upon
subsequent liquidation) stock, securities or assets with respect to or in
exchange for Common Stock (other than a transaction subject to Section 2C
hereof) is referred to herein as an "Organic Change". Prior to the consummation
of any Organic Change, the Company shall make appropriate provision to ensure
that each Registered Holder of Warrants shall thereafter have the right to
acquire and receive upon exercise thereof, in lieu of or addition to (as the
case may be) the Warrant Shares immediately theretofore acquirable and
receivable upon exercise of such Registered Holder's Warrants, such shares of
stock, securities or assets as may be issued or payable with respect to or in
exchange for the number of Warrant Shares immediately theretofore acquirable and
receivable upon exercise of such Registered Holder's Warrants had such Organic
Change not taken place. In any such case, the Company shall make appropriate
provision with respect to such Registered Holder's rights and interests to
insure that the provisions hereof (including this Section 2) shall thereafter be
applicable to the Warrants (including, in the case of any such Organic Change in
which the successor entity or purchasing entity is other than the Company, an
immediate adjustment of the Exercise Price to the value for the Common Stock
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reflected by the terms of such Organic Change and a corresponding immediate
adjustment in the number of Warrant Shares acquirable and receivable upon
exercise of the Warrants, if the value so reflected is less than the Fair Market
Value of the Common Stock in effect immediately prior to such Organic Change).
The Company shall not effect any such Organic Change unless, prior to the
consummation thereof, the successor entity (if other than the Company) resulting
from such Organic Change (including a purchaser of all or substantially all the
Company's assets) assumes by written instrument the obligation to deliver to
each Registered Holder of Warrants such shares of stock, securities or assets
as, in accordance with the foregoing provisions, such Registered Holder may be
entitled to acquire upon exercise of Warrants.
2E. Certain Events. If any event occurs of the type contemplated by
the provisions of this Section 2 but not expressly provided for by such
provisions (including, without limitation, the granting of stock appreciation
rights, phantom stock rights or other rights with equity features but excluding
any Permitted Issuance), then the Company's Board of Directors shall exercise
their reasonable judgment consistent with the fundamental intent of such
provisions in making an appropriate adjustment in the Exercise Price and the
number of Warrant Shares obtainable upon exercise of this Warrant so as to
protect the rights of the Registered Holder of this Warrant.
2F. Notices.
(i) Promptly following any event requiring adjustment of the
Exercise Price, the Company shall give written notice thereof to the Registered
Holder, setting forth in reasonable detail and certifying the calculation of
such adjustment.
(ii) The Company shall give written notice to the Registered
Holder at least 30 days prior to the date on which the Company closes its books
or takes a record (A) with respect to any dividend or distribution upon the
Common Stock, (B) with respect to any pro rata subscription offer to holders of
Common Stock, or (C) for determining rights to vote with respect to any Organic
Change, dissolution or liquidation.
(iii) The Company shall give written notice to the Registered
Holder at least 30 days prior to the date on which any Organic Change,
dissolution or liquidation shall take place.
(iv) Immediately upon the exercise of any of the Warrants, the
Company shall give written notice to the non-exercising Registered Holders of
the Warrants, setting forth in reasonable detail the exercising Registered
Holder and/or Purchaser, the number of Warrants being exercised, the method of
payment of such exercise and the date of such exercise.
SECTION 3. Purchase Rights. If at any time the Company grants,
issues or sells any options, convertible securities or rights to purchase stock,
warrants, securities or other property pro rata to the record holders of the
Common Stock (the "Purchase Rights"), then the Company shall grant, issue or
offer to sell (as the case may be) to the Registered Holder, on the same term as
to the record holders, the aggregate Purchase Rights which such Registered
Holder would have been granted, issued or sold if such Registered Holder had
held the maximum
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number of Warrant Shares then acquirable upon complete exercise of this Warrant
immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights or, if no such record is taken, the date as of
which the record holders of Common Stock are to be determined for the grant,
issue or sale of such Purchase Rights.
SECTION 4. Definitions. The following terms have the meanings set
forth below:
"Affiliate" has the meaning set forth in 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended.
"Common Stock" means the Common Stock, $.001 par value per share,
and any securities into which such Common Stock is hereafter converted or
exchanged.
"Common Stock Deemed Outstanding" means, at any given time, the
number of shares of all classes of the Company's common stock actually
outstanding at such time, plus the number of shares of the Company's common
stock deemed to be outstanding pursuant to Section 2B(i) or 2B(ii) hereof.
"Diluted Basis" means with respect to the calculation of the number
of shares of Common Stock, (i) all shares of Common Stock outstanding at the
time of determination and (ii) all shares of Common Stock issuable upon the
exercise, conversion or exchange of any Option or Convertible Security.
"Fair Market Value" means (i) the average of the closing sales
prices of the Common Stock on all domestic national securities exchanges on
which the Common Stock is listed, or (ii) if there have been no sales on any
such exchange on any day, the average of the highest bid and lowest asked prices
on all such exchanges at the end of such day or, (iii) if on any day the Common
Stock is not so listed, the sales price for the Common Stock as of 4:00 P.M.,
New York time, as reported on the NASDAQ National Market or, (iv) if the Common
Stock is not reported on the NASDAQ National Market, the average of the
representative bid and asked quotations for the Common Stock as of 4:00 P.M.,
New York time, as reported on the NASDAQ interdealer quotation system, or any
similar successor organization, in each such case averaged over a period of 21
trading days consisting of the day as of which "Fair Market Value" is being
determined and the 20 consecutive trading days prior to such day.
Notwithstanding the foregoing, if at any time of determination either (x) the
Common Stock is not registered pursuant to Section 12 of the Securities Exchange
Act of 1934, as amended, and either listed on a national securities exchange or
authorized for quotation in the NASDAQ system, or (y) less than 25% of the
outstanding Common Stock is held by the public free of transfer restrictions
under the Securities Act of 1933, as amended, then Fair Market Value shall mean
the price that would be paid per share for the entire common equity interest in
the Company in an orderly sale transaction between a willing buyer and a willing
seller, taking into account the appropriate lack of liquidity of the Company's
securities and any appropriate discount for the minority position represented by
the Warrants and Warrant Shares, using valuation techniques then prevailing in
the securities industry and assuming full disclosure of all relevant information
and a reasonable period of time for effectuating such sale. Fair Market Value
shall be determined by the
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Company's Board of Directors in its good faith judgment. A majority of the
Required Holders shall have the right to require that an independent investment
banking firm mutually acceptable to the Company and the Required Holders
determine Fair Market Value, which firm shall submit to the Company and the
Warrant holders a written report setting forth such determination. The expenses
of such firm will be borne by the Company, and the determination of such firm
will be final and binding upon all parties.
"Investors' Agreement" means the Investors' Rights Agreement, dated
as of May 20, 2002, among the Company and the signatories thereto, as such
agreement may be amended or modified from time to time.
"Loan Participation Agreement" means the Loan Participation
Agreement, dated as of May 20, 2002, between Kimco Capital Corp. and Third
Avenue Trust, on behalf of the Third Avenue Real Estate Value Fund Series, as
such agreement may be amended or modified from time to time.
"Permitted Issuance" means any issuance by the Company of (a) Common
Stock on or prior to the date hereof; (b) Common Stock upon exercise of the
Warrants; (c) Common Stock or rights or options to purchase any such shares
issued to employees or consultants of the Company or any direct or indirect
subsidiary or pursuant to one or more stock bonus or similar plans adopted by
the Board of Directors of the Company in an aggregate amount not to exceed 15%
of the outstanding Common Stock on a Diluted Basis; (d) Common Stock pursuant to
an underwritten offering of Common Stock registered under the Securities Act of
1933, as amended; or (e) Common Stock or rights or options to purchase any such
shares issued under Company's plan of reorganization filed with the United
States Bankruptcy Court for the District of Maryland (Baltimore Division) or
under any agreement entered into in accordance with such plan.
"Person" means any individual, partnership, joint venture,
corporation, trust, unincorporated organization or government or department or
agency thereof.
"Registered Holder" means the holder of this Warrant as reflected in
the records of the Company maintained pursuant to Section 12.
"Required Holders" means the holders of a majority of the purchase
rights represented by the Warrants as originally issued which remain outstanding
and unexercised.
"Warrants" means the Stock Purchase Warrants, dated as of May 20,
2002, issued by the Company to each of Kimco Realty Services, Inc. and Third
Avenue Trust, on behalf of the Third Avenue Real Estate Value Fund Series
representing the right to purchase from the Company up to a total of an
aggregate of 5,869,565 shares of Common Stock (as adjusted pursuant to the terms
thereof) together with any stock purchase warrants issued in substitution,
exchange or replacement therefor.
"Warrant Shares" means shares of the Common Stock issuable upon
exercise of the Warrants including, without limitation, the Additional Shares;
provided, that if the securities issuable upon exercise of the Warrants are
issued by an entity other than the Company or there is
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a change in the class of securities so issuable, then the term "Warrant Shares"
shall mean shares of the security issuable upon exercise of the Warrants if such
security is issuable in shares, or shall mean the equivalent units in which such
security is issuable if such security is not issuable in shares.
SECTION 5. No Voting Rights; Limitations of Liability. This Warrant
shall not entitle the Registered Holder hereof to any voting rights or other
rights as a stockholder of the Company. No provision hereof, in the absence of
affirmative action by the Registered Holder to purchase Warrant Shares, and no
enumeration herein of the rights or privileges of the Registered Holder shall
give rise to any liability of such Registered Holder for the Exercise Price of
Warrant Shares acquirable by exercise hereof or as a stockholder of the Company.
SECTION 6. Restrictions. This Warrant and all rights hereunder are
transferable only to Affiliates of each of Kimco Realty Services, Inc. and Third
Avenue Trust, on behalf of the Third Avenue Real Estate Value Fund Series in
whole or in part, without charge to the Registered Holder, upon surrender of
this Warrant with a properly executed Assignment (in the form of Exhibit II
hereto) at the principal office of the Company.
SECTION 7. Warrant Exchangeable for Different Denominations. This
Warrant is exchangeable, upon the surrender hereof by the Registered Holder at
the principal office of the Company, for new Warrants of like tenor representing
in the aggregate the purchase rights hereunder, and each of such new Warrants
shall represent such portion of such rights as is designated by the Registered
Holder at the time of such surrender. At the request of the Registered Holder
(pursuant to a transfer of Warrants or otherwise), this Warrant may be exchanged
for one or more Warrants to purchase Common Stock. The date the Company
initially issues this Warrant shall be deemed to be the date of issuance hereof
regardless of the number of times new certificates representing the unexpired
and unexercised rights formerly represented by this Warrant shall be issued.
SECTION 8. Exchange. In the event that it becomes unlawful or, in
the reasonable judgment of any Registered Holder of this Warrant, unduly
burdensome by reason of a change in legal or regulatory considerations or the
interpretation thereof affecting the ability of financial institutions, real
estate investment trusts or their affiliates to hold equity securities, to hold
any or all of the Warrants or Warrant Shares, the Registered Holder of this
Warrant shall have the right to require the Company to use its reasonable best
efforts to permit all or part of such Registered Holder's Warrants or Warrant
Shares to be exchanged for nonvoting stock or similar interests that convey
equivalent economic benefits to such Warrants or Warrant Shares and include
equivalent anti-dilution protection. To the extent that the Company may lawfully
do so after the exercise of its reasonable best efforts, any such exchange shall
occur as soon as practicable (within 60 days) after written notice by the
Registered Holder of this Warrant to the Company (or such earlier date if
required to comply with applicable law).
SECTION 9. Replacement. Upon receipt of evidence reasonably
satisfactory to the Company (an affidavit of the Registered Holder shall be
satisfactory) of the ownership and the loss, theft, destruction or mutilation of
any certificate evidencing this Warrant, and in the case of any such loss, theft
or destruction, upon receipt of indemnity reasonably satisfactory to
12
the Company (provided, that if the Registered Holder is a financial institution
or other institutional investor its own agreement shall be satisfactory), or, in
the case of any such mutilation upon surrender of such certificate, the Company
shall (at its expense) execute and deliver in lieu of such certificate a new
certificate of like kind representing the same rights represented by such lost,
stolen, destroyed or mutilated certificate and dated the date of such lost,
stolen, destroyed or mutilated certificate.
SECTION 10. Notices. Except as otherwise expressly provided herein,
all notices and deliveries referred to in this Warrant shall be in writing,
shall be delivered personally, sent by registered or certified mail, return
receipt requested and postage prepaid or sent via nationally recognized
overnight courier or via facsimile, and shall be deemed to have been given when
so delivered (or when received, if delivered by any other method) if sent (i) to
the Company, at its principal executive offices and (ii) to a Registered Holder,
at such Registered Holder's address as it appears in the records of the Company
(unless otherwise indicated by any such Registered Holder).
SECTION 11. Amendment and Waiver. Except as otherwise provided
herein, the provisions of the Warrants may be amended and the Company may take
any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the prior written consent of
the Registered Holder.
SECTION 12. Warrant Register. The Company shall maintain at its
principal executive offices books for the registration and the registration of
transfer of Warrants. The Company may deem and treat the Registered Holder as
the absolute owner hereof (notwithstanding any notation of ownership or other
writing hereon made by anyone) for all purposes and shall not be affected by any
notice to the contrary.
SECTION 13. Fractions of Shares. The Company may, but shall not be
required to, issue a fraction of a Warrant Share upon the exercise of this
Warrant in whole or in part. As to any fraction of a share which the Company
elects not to issue, the Company shall make a cash payment in respect of such
fraction in an amount equal to the same fraction of the Fair Market Value of a
Warrant Share on the date of such exercise.
SECTION 14. Registration Rights. The Registered Holder (and
assignees thereof) is entitled to the benefit of the registration rights in
respect of the Warrant Shares as are set forth in the Investors' Agreement.
SECTION 15. Company to Reaffirm Obligations. The Company will, at
the time of each exercise of this Warrant, upon the request of the Registered
holder hereof, acknowledge in writing its continuing obligation to afford to
such Registered Holder all rights (including, without limitation, any rights to
registration, pursuant to the Investors' Agreement, of the shares of Common
Stock issued upon such exercise) to which such Registered Holder shall continue
to be entitled after such exercise in accordance with the terms of this Warrant,
provided, that if the Registered Holder of this Warrant shall fail to make any
such request, such failure shall not affect the continuing obligation of the
Company to afford such rights to such Registered Holder.
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SECTION 16. Descriptive Headings; Governing Law. The descriptive
headings of the several Sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS WARRANT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
* * * * *
14
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
and attested by its duly authorized officers under its corporate seal and to be
dated as of the date hereof.
FRANK'S NURSERY & CRAFTS, INC.
By: Michael D. McBride
------------------
Name: Michael D. McBride
Title: Vice President Legal
[CORPORATE SEAL]
Attest:
/s/ Larry T. Lakin
- ------------------------------------
Treasurer
EXHIBIT I
EXERCISE AGREEMENT
TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS WARRANT
FRANK'S NURSERY & CRAFTS, INC.
The undersigned holder hereby exercises the right to purchase
______________ of the shares of Common Stock ("Warrant Shares") of Frank's
Nursery & Crafts, Inc., a Delaware corporation (the "Company"), evidenced by the
attached Warrant (the "Warrant"). Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Warrant.
1. Form of Warrant Exercise Price. The Holder intends that payment
of the Warrant Exercise Price shall be made as:
___ a "Cash Exercise" with respect to _____ Warrant Shares;
and/or
___ a "Loan Exercise" with respect to ____ Warrant Shares.
2. Payment of Warrant Exercise Price. In the event that the holder has
elected a Cash Exercise, Loan Exercise or combination thereof with respect to
some or all of the Warrant Shares to be issued pursuant hereto, the holder
shall:
(a) pay the sum of $______________ to the Company in accordance with
the terms of the Warrant; and/or
(b) apply $_________________ of the principal amount of the Term Loan (as
defined in the Credit Agreement) in accordance with the terms of the Warrant
[and/or apply $_________ of the principal amount of that certain Revolving
Credit Loan (as defined in the Credit Agreement) made on _______ __, 200_].
3. Delivery of Warrant Shares. The Company shall deliver to the
holder ______________ Warrant Shares in accordance with the terms of the
Warrant.
Date: _______________________ , __,_____________
________________________________________________
Name of Registered Holder
By:
_____________________________________________
Name:
Title:
EXHIBIT II
ASSIGNMENT
FOR VALUE RECEIVED, ________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant (Certificate No. ______) with respect to the number of the Warrant
Shares covered thereby set forth below, unto:
Names of Assignee Address No. of Shares
- ----------------- ------- -------------
Dated: Signature ______________________________
______________________________
Witness ______________________________